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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------X MARLENA SANTANA, YASMINDA DAVIS and MELISSA RODRIGUEZ, Index No. 305261-08 Plaintiff, -against- COMPLAINT G.E.B. MEDICAL MANAGEMENT, INC., BRUCE PASWALL and PETER AYENDE, Defendants. ----------------------------------------------------------X Plaintiffs MARLENA SANTANA, YASMINDA DAVIS and
MELISSA RODRIGUEZ (“Plaintiffs”), by their attorneys, the Law Office
of Steven M. Sack (Scott A. Lucas, Of Counsel), allege as follows for their
Verified Complaint against Defendants G.E.B. MEDICAL
MANAGEMENT, INC., BRUCE PASWALL and PETER AYENDE
(“Defendants”):
INTRODUCTION
1. This case involves a medical office that brazenly harasses
and fires pregnant employees for being pregnant, and otherwise unlawfully
discriminates against them.
2
2. YASMINDA DAVIS, MARLENA SANTANA and
MELISSA RODRIGUEZ – the only employees ever to be fired from their
employer – were harassed, discriminated against, and then fired after their
employer learned they were pregnant.
3. As detailed herein, the challenged conduct violates the
New York City Human Rights Law (Administrative Code §§ 8-107 and 8-
502) and the New York State Human Rights Law (Executive Law §§ 290, et
seq. and 296).
4. Plaintiffs seek compensatory and punitive damages,
attorney’s fees, interest and costs against Defendants for illegally
discriminating against them based on their sex, pregnancy, sex-plus
pregnancy and sex-plus race and national origin.
THE PARTIES
5. Plaintiff MARLENA SANTANA is a natural person
residing at 2727 University Avenue, Apt. 6H, Bronx, NY 10032.
6. Plaintiff YASMINDA DAVIS is a natural person
residing at 747 Jefferson Avenue, 2nd Floor, Elizabeth, NJ 07201.
7. Plaintiff MELISSA RODRIGUEZ is a natural person
residing at 2115 Honeywell Ave., Apt. 2L, Bronx, New York 10460.
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8. On information and belief, Defendant G.E.B. MEDICAL
MANAGEMENT, INC. is a domestic corporation organized and existing
under the laws of the State of New York, with its principal office located at
515 Madison Avenue in Manhattan.
9. Defendant BRUCE PASWALL is a natural person who,
on information and belief, resides at 13 Logging Road, Katonah, New York
10536.
10. Defendant PETER AYENDE is a natural person who, on
information and belief, resides in the State of New York, County of Queens.
11. On information and belief, at all times mentioned herein
PETER AYENDE was the agent of G.E.B. MEDICAL MANAGEMENT,
INC. (“G.E.B.”) and BRUCE PASWALL, and in doing the things alleged in
this Complaint was acting within the course and scope of such agency.
12. On information and belief, at all times mentioned herein
BRUCE PASWALL was an agent of G.E.B.
JURISDICTION & VENUE
13. This Court has subject matter jurisdiction under CPLR §
301, et seq.
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14. Venue is proper in Bronx County under, inter alia, CPLR
§§ 503(a) and 509.
15. This action was timely commenced with the filing of the
Summons on June 24, 2008.
16. Pursuant to § 8-102(c) of the New York City
Administrative Code, a copy of this Complaint will be served on the New
York City Commission on Human Rights and Corporation Counsel within
10 days after it is served on Defendants and filed with the Court.
FACTS1
17. G.E.B. is a medical and medical-related practice located
at 515 Madison Avenue in Manhattan.
18. On information and belief, G.E.B.’s practice includes,
without limitation, chiropractic, orthopedic, physical therapy and
acupuncture.
19. On information and belief, Defendant BRUCE
PASWALL (hereafter, “DR. PASWALL”) is a licensed physician and an
owner and manager of G.E.B.
1 All directly quoted statements, unless otherwise specified, are the sum and substance of such statements as recalled by Plaintiffs.
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20. On information and belief, DR. PASWALL was an
owner of G.E.B.’s predecessor, BJP Medical Management, Inc., established
in January 1994.
21. On information and belief, Defendant PETER AYENDE
(“MR. AYENDE”) is and was at all material times herein G.E.B.’s office
manager and an agent of DR. PASWALL.
22. At all material times herein, DR. PASWALL exercised
managerial responsibility over G.E.B.’s workforce.
23. At all material times herein, MR. AYENDE exercised
managerial and/or supervisory responsibility over Plaintiffs and other G.E.B.
employees.
24. On information and belief, the managerial and/or
supervisory responsibility that MR. AYENDE exercised over Plaintiffs was
given to him by DR. PASWALL.
25. At all material times herein, MR. AYENDE was in a
position to routinely influence DR. PASWALL’S decisions concerning the
hiring, firing and discipline of G.E.B.’s employees.
26. On information and belief, at all material times herein
MR. AYENDE did routinely influence DR. PASWALL’S decisions
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concerning the hiring, firing and discipline of G.E.B.’s employees, including
Plaintiffs.
The Relationship between Dr. Paswall and Mr. Ayende
27. On information and belief, DR. PASWALL and MR.
AYENDE worked closely together for nearly 10 years before hiring
MARLENA SANTANA, YASMINDA DAVIS or MELISSA
RODRIGUEZ, and continued to work closely together at all material times
herein.
28. On information and belief, the relationship between DR.
PASWALL and MR. AYENDE eventually grew so close that MR.
AYENDE, in the presence of DR. PASWALL, told co-workers, in words or
substance, that DR. PASWALL was including him in his will, and was
putting him in charge of the company when he (DR. PASWALL) died.
How Dr. Paswall’s view of pregnant women in the workforce was affected by a negative experience with one pregnant employee
29. On information and belief, before G.E.B. employed
Plaintiffs, a G.E.B. employee named Brenda became pregnant.
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30. On information and belief, Brenda was dating MR.
AYENDE at the time she became pregnant.
31. On information and belief, the relationship between DR.
PASWALL and G.E.B. on the one hand and MR. AYENDE on the other,
grew strained due to: (A) G.E.B.’s actual or purported dissatisfaction with
Brenda’s work performance during (and shortly after) her pregnancy; and
(B) Brenda’s perception that she was being treated unfairly and/or underpaid
by G.E.B. during (and shortly after) her pregnancy.
32. On information and belief, after she had returned to work
following childbirth, Brenda renewed her requests for a raise so that, at least
in her view, her compensation would be commensurate with her
performance and increasing level of experience.
33. On information and belief, DR. PASWALL finally
agreed to give Brenda a raise.
34. On information and belief, shortly thereafter, in March or
April of 2006, Brenda walked off the job and/or quit her employment with
no advance notice to DR. PASWALL or G.E.B.
35. On information and belief, DR. PASWALL was angered
upon learning that Brenda walked off the job and/or quit her employment
with no advance notice.
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36. On information and belief, the friction and discontent
surrounding Brenda’s employment contributed to or reinforced DR.
PASWALL’S negative view of pregnant women in the workforce.
Marlena Santana
37. Plaintiff MARLENA SANTANA (“MS. SANTANA”)
was interviewed twice by DR. PASWALL, once in early 2006, and a second
time (with MR. AYENDE present) in April 2006, shortly after Brenda quit.
38. During the second interview, DR. PASWALL told MS.
SANTANA, inter alia, that he could tell by her body language, mannerisms,
self-presentation and ethnicity that she is very courteous and well-educated,
was brought up to be very respectful, has a beautiful smile that is an asset,
and that she will go far in life.
39. During that interview, DR. PASWALL also asked MS.
SANTANA if she was married or had any children.
40. In response, MS. SANTANA said she was married but
did not have any children.
41. DR. PASWALL then told MS. SANTANA not to have
children. Alluding to Brenda’s pregnancy and childbirth while employed by
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G.E.B., DR. PASWALL added that he told MR. AYENDE “not to get
involved, and not to have children [with Brenda], but he didn’t listen.”
42. In response, MS. SANTANA told DR. PASWELL not to
worry, that she is still a college student, and that she is planning to wait until
after 30 to have children, to which DR. PASWALL replied “Smart girl.”
43. DR. PASWALL then told MS. SANTANA that she
would be hired to work from 9:00 a.m. to 5:00 p.m. as an administrative
assistant, and that her main duties would be to verify patients’ health
insurance coverage, schedule appointments, and interact with patients.
44. MS. SANTANA was employed in spring 2006, and
performed the duties assigned to her diligently and competently for the
duration of her employment.
45. While employed by Defendants MS. SANTANA did not
take any vacation or personal days.
46. In or about late-June or early-July 2006, MS. SANTANA
learned she was pregnant, and promptly informed MR. AYENDE.
47. In response, MR. AYENDE took a deep breath and said,
“I don’t know, I’ll have to talk to DR. PASWALL.”
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48. MR. AYENDE then told MS. SANTANA, in words or
substance, “We’re not going to kick you out of here. We just hired you. We
don’t know if you’re going to stick around after you have the baby.”
49. After learning that MS. SANTANA was pregnant:
(A) DR. PASWALL stopped speaking with her in an open,
positive manner, as he had before she was pregnant, and
MR. AYENDE began prefacing many work assignments
with the phrase “If you want to keep your job…”
(B) Defendants began transitioning her away from her
regular front office workspace and job duties, moving her
instead into a small, cramped, unventilated windowless
room, where she had to carry stacks of files and kneel
down to access the bottom shelf and balance herself on
top of five gallon water bottles to access the top shelf.
(C) Defendants increasingly assigned her demeaning tasks,
such as filling DR. PASWALL’S water bottle (which
DR. PASWALL would just hand her without saying
anything, expecting it to be filled), and going to the store
to buy Diet Pepsi and “gummy fruits” for MR.
AYENDE.
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50. As her pregnancy progressed, Defendants made and
condoned unfairly critical and derogatory comments about MS. SANTANA
that were unrelated to her work performance.
51. Defendants also gave MS. SANTANA tasks that were
mindless, tedious and/or objectively senseless after learning about her
pregnancy. For example, instead of quickly shredding old medical records
that were ready to be discarded, MS. SANTANA – acting on MR.
AYENDE’S instructions – spent the equivalent of about 10 full workdays
using a black marker to redact names from such records and then taping the
pages together facing each other.
52. In or about late August 2006, when MS. SANTANA was
about four months pregnant, MR. AYENDE told MS. SANTANA that DR.
PASWALL would cut her weekly hours from over 40 down to 20 at the end
of her pregnancy, at which time he said a part-time employee would be hired
to work the remaining hours.
53. MS. SANTANA assumed that the end of her pregnancy
meant the last month of her pregnancy, so she said “okay.”
54. However, instead of waiting until the end of MS.
SANTANA’S employment to reduce her hours and hire a part-time
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employee to make up the difference, Defendants proceeded to do so a few
days after broaching the subject with MS. SANTANA.
55. The new part-time employee -- “Natalie” -- was young,
attractive, childless and not pregnant (or not known to be pregnant).
56. Although Natalie was ostensibly hired to do the same job
that MS. SANTANA was doing, and was supposed to begin work each day
at 12:30 p.m., she was given overtly preferential treatment over MS.
SANTANA (and MS. SANTANA’S pregnant successor, MELISSA
RODRIGUEZ).
57. Specifically, Natalie was often late or absent, but was not
reprimanded, much less punished, and generally did not offer any excuse for
coming in late.
58. Further, even though MS. SANTANA was a salaried
employee, and was receiving a reduced salary for working the reduced shift
that Defendants imposed on her, she was nonetheless required to continue
working well past 12:30 p.m., until after Natalie finally showed up for work,
which was often 1:30 p.m. or later.
59. In addition, Natalie was not required to share the tedious
back room work that MS. SANTANA was largely relegated to, but was
instead permitted to become a veritable “front office queen” – spending most
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of her time doing extremely light work in the front office where MR.
AYENDE and DR. PASWALL could get a good look at her in the revealing
outfits that she wore.
60. Defendants allowed other employees to take time off of
work without adverse consequences, and to remain employed despite the
effects of illnesses, temporarily disabling conditions or personal
circumstances.
61. However, the pregnancy-related symptoms that MS.
SANTANA experienced would be later mentioned by Defendants as a
reason she was terminated.
62. Because the symptoms experienced by MS. SANTANA
were caused in whole or in part by her pregnancy, Defendants acted as if it
somehow validated their preconceived notions about the ability of pregnant
women to serve as productive members of the workforce, when, in fact,
G.E.B. would not have terminated another employee who suffered from a
comparable or more severe non-pregnancy-related illness or disability, or
who was occasionally absent from work due to personal circumstances or a
comparable or more severe non-pregnancy-related illness.
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63. After coming to work on October 5, 2006, MS.
SANTANA saw that a solid, dependable co-worker named YASMINDA
DAVIS – who happened to be pregnant – was packing up to leave.
64. When MS. SANTANA asked MR. AYENDE why MS.
DAVIS was leaving, he claimed that MS. DAVIS was not doing her job and
said that “If you want to stay you better be on your game.”
65. The following day it was MS. SANTANA’S turn.
66. After arriving to work that day, MS. SANTANA was
called into DR. PASWALL’S office.
67. MR. AYENDE then told her, in the presence of DR.
PASWALL, “It is not working out. You have to go.”
68. Defendants gave MS. SANTANA no other reason for
firing her.
69. MS. SANTANA was replaced by an employee who was
not pregnant or who was not known to be pregnant.
Yasminda Davis
70. Plaintiff YASMINDA DAVIS (“MS. DAVIS”) was
interviewed by DR. PASWALL in May 2006.
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71. During the interview, DR. PASWALL told MS. DAVIS
that MR. AYENDE “is like a son to me who still makes many mistakes.”
72. During that same interview, DR. PASWALL also told
MS. DAVIS “I don’t ever want to look bad. I want to look good at all times,
and if I don’t, I’m not happy.”
73. During that same interview, DR. PASWALL asked MS.
DAVIS about her marital status, whether she had a family, what her child
care arrangements were, and what her husband did for a living.
74. On information and belief, one important reason DR.
PASWALL asked these questions was to try and gauge the likelihood that
MS. DAVIS could afford to have another child.
75. MS. DAVIS responded by telling DR. PASWALL that
she was married, had one child, what her child care arrangements were, and
that her husband’s work compensation was modest and that her family was
facing difficult financial circumstances. DR. PASWALL then told MS.
DAVIS “you don’t look like you could survive on unemployment.”
76. Following his interview with MS. DAVIS, DR.
PASWALL informed her that she was being hired to work for G.E.B. as a
medical biller/coder with a starting salary of $40,000 per year commencing
the next day.
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77. MS. DAVIS reported to work the following day, and
performed her duties diligently and competently for the duration of her
employment.
78. During the entire time she worked at G.E.B., MS.
DAVIS did not take any personal days and did not take any vacation days.
79. By about early July 2006, the office had become aware
that MS. DAVIS’S co-worker, MS. SANTANA, was pregnant.
80. Shortly after MS. SANTANA’S pregnancy became
known in the office, MS. DAVIS heard what sounded like the tail end of a
conversation between MR. AYENDE, DR. PASWALL and MS.
SANTANA in the front office area concerning MS. SANTANA’S
pregnancy. DR. PASWALL then looked at MS. DAVIS and said, in what
seemed to be a half-joking manner, “I know you better not get pregnant.”
81. Shortly after MS. SANTANA’S pregnancy became
known in the office, MR. AYENDE began making baseless, negative
remarks about MS. SANTANA to (or in the presence of) MS. DAVIS.
82. In particular, MR. AYENDE made statements to (or in
the presence of) MS. DAVIS to the effect that (A) MS. SANTANA was
allegedly lying about the medical impact of her pregnancy (e.g., claiming
that MS. SANTANA lied about having gone to the emergency room); and
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(B) MS. SANTANA was allegedly not working as hard as she allegedly
should be because she was pregnant.
83. MS. DAVIS repeatedly criticized MR. AYENDE for his
negative attitude toward MS. SANTANA after she became pregnant.
84. Thereafter, by mid-September 2006, MS. DAVIS herself
began showing symptoms of pregnancy, and several of her co-workers,
including MR. AYENDE, began commenting on how bad she looked.
85. Several days went by and MS. DAVIS’S appearance did
not improve, at which point MR. AYENDE and DR. PASWALL began
treating MS. DAVIS differently because, on information and belief, they
suspected she too was likely pregnant.
86. For the first time during MS. DAVIS’S employment,
MR. AYENDE and DR. PASWALL began to make baseless and picayune
criticisms of MS. DAVIS.
87. On September 28, 2006, MS. DAVIS informed MR.
AYENDE and DR. PASWALL by email that she had to leave early the
following day for a doctor’s appointment.
88. MR. AYENDE approached MS. DAVIS later that day
and asked her if she was feeling okay and said she has not been herself all
month.
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89. MR. AYENDE then asked MS. DAVIS if she was
feeling tired and if it might be “number two” (i.e., her second child).
90. MS. DAVIS replied that she did not know for sure, but
that she was going to find out tomorrow.
91. Upon hearing this, MR. AYENDE exclaimed “Oh Boy!”
in an alarmed tone, abruptly terminated the discussion, and headed straight
for DR. PASWALL’S office.
92. On information and belief, MR. AYENDE entered DR.
PASWALL’S office and discussed MS. DAVIS’S apparent pregnancy with
DR. PASWALL.
93. On information and belief, the knowledge that MS.
DAVIS had an appointment the next day to see a doctor concerning her
pregnancy status, coupled with the nausea and fatigue that MS. DAVIS
exhibited over the previous 2-3 weeks, confirmed in Defendants’ minds that
MS. DAVIS was in fact pregnant.
94. On information and belief, that is when Defendants
decided to fire MS. DAVIS.
95. After MS. DAVIS went for her doctor’s appointment,
Defendants cleared her desk so she would have no work the following
Monday morning.
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96. When MS. DAVIS arrived for work that Monday
(October 2, 2006), she saw that her desk had been cleared and that her work
was missing from the desk.
97. MS. DAVIS was then summoned to DR. PASWALL’s
office.
98. When MS. DAVIS entered DR. PASWALL’S office,
DR. PASWALL told her that she should give her two weeks notice because
she really was “not working out.”
99. DR. PASWALL also asked MS. DAVIS if she was
overwhelmed and whether the work was too much for her, to which MS.
DAVIS responded that she was not overwhelmed and that the work was not
too much for her.
100. During that meeting, DR. PASWALL told MS. DAVIS
she needed to find something that was allegedly more her pace, and that he
was giving her until October 5, 2006 to see if she could catch up with her
work.
101. However, MS. DAVIS had not fallen behind in her work.
102. The next day (October 3, 2006) MR. AYENDE returned
MS. DAVIS’S patient billing letters for being unsigned, even though she had
never been asked to sign such letters in the past.
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103. That same day, MR. AYENDE incorrectly claimed that
MS. DAVIS had put the wrong attorney’s name on a document, and wrote
the word “WRONG” in huge capital letters across the page.
104. When MS. DAVIS corrected him, MR. AYENDE said
“No, it’s wrong!” and stormed off (instead of looking at the document to see
that he was wrong).
105. On October 5, 2006, MS. DAVIS was called into DR.
PASWALL’S office and asked if she found a job yet.
106. MS. DAVIS responded by asking whether she should
have found another job.
107. DR. PASWALL replied that it was “not working out”
and she had to leave.
108. On information and belief, MS. DAVIS was replaced by
one or more employees who were not pregnant or who were not known to be
pregnant.
109. In addition, one of the employees hired to replace MS.
DAVIS was a man named “Leon,” who was treated by DR. PASWALL and
MR. AYENDE as if he was “one of the guys”.
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110. Upon information and belief, Leon was paid at a higher
rate than comparably situated but more experienced female employees like
Talitha Crespo and Yasminda Davis.
111. Upon information and belief, Defendants did not give
Talitha Crespo any substantial increase in pay until it became clear that they
would need her as a witness against MS. SANTANA, MS. DAVIS and MS.
RODRIGUEZ.
Melissa Rodriguez
112. Plaintiff MELISSA RODRIGUEZ interviewed twice
with G.E.B. in the fall of 2006, first with MR. AYENDE and then with DR.
PASWALL.
113. During the first interview, MR. AYENDE asked MS.
RODRIGUEZ if she could do “heavy lifting.”
114. MS. RODRIGUEZ said “yes.” MR. AYENDE then said
“I only ask because the last female who worked here did not want to file.”
115. The position to which MS. RODRIGUEZ applied
(medical administrative assistant) did not require heavy lifting.
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116. On information and belief, MR. AYENDE’S purpose in
asking MS. RODRIGUEZ if she could do heavy lifting was to find out if she
was pregnant.
117. In addition, on information and belief, MR. AYENDE’S
reference to “the last female who worked here” was to MS. SANTANA
(although MS. SANTANA never refused to file).
118. During the interview, MR. AYENDE also gave MS.
RODRIGUEZ a written test to complete.
119. Thereafter MS. RODRIGUEZ returned for a second
interview, which was with DR. PASWALL.
120. After her second interview, MS. RODRIGUEZ was
asked to come in and on arriving was told, among other things, that she was
being hired as a part-time medical administrative assistant (under 30 hours
per week), with a possibility of full time hours in the near future after a
particular employee went back to school.
121. After reporting to work, MS. RODRIGUEZ brought in a
picture of her daughter and placed it on her desk.
122. On seeing the picture, DR. PASWALL asked, in a
surprised and negative tone, “You have a daughter already? How old are
you?”
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123. MR. AYENDE, who was also present, added “I didn’t
know you had a daughter. Is the father around?”
124. In response to these unwelcome comments, MS.
RODRIGUEZ did her best to gloss over the subject without appearing to be
defensive.
125. Throughout her employment, MS. RODRIGUEZ
performed her duties diligently and competently.
126. During the entire time she worked at G.E.B., MS.
RODRIGUEZ did not take any vacation or personal days, and only took one
sick day, and that was unpaid.
127. On or about December 18, 2006, MS. RODRIGUEZ
overheard Jennifer Norton, DR. PASWALL and MR. AYENDE discussing
a bet or potential bet about whether she was pregnant.
128. Shortly thereafter, MS. RODRIGUEZ learned that
Jennifer Norton had told MR. AYENDE that she (MS. RODRIGUEZ) was
pregnant, and that MR. AYENDE was troubled by that.
129. MS. RODRIGUEZ then asked MR. AYENDE if
anything was wrong and if he needed to speak to her, and he said “yes” and
asked MS. RODRIGUEZ if she was pregnant.
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130. MR. AYENDE asked MS. RODRIGUEZ if her husband
was the father, and MS. RODRIGUEZ said “yes.”
131. By this point MS. RODRIGUEZ had become very
distressed, and her eyes began to tear.
132. To avoid being seen crying, MS. RODRIGUEZ retreated
to the filing area.
133. Jennifer Norton followed MS. RODRIGUEZ into the
filing area and informed MS. RODRIGUEZ that “the last girl” was fired
because she had a “complicated pregnancy,” but that MS. RODRIGUEZ is
“obviously healthy” and does not “call out,” so she has “nothing to worry
about.”
134. MS. RODRIGUEZ then walked into the general office
area, and Ms. Norton called out to MR. AYENDE, “Peter, right? They fired
Marlena because she had complications with her pregnancy.”
135. MR. AYENDE responded, “Yes.”
136. The following day when MS. RODRIGUEZ took off her
coat, MR. AYENDE stared at her stomach and said, “Whoa! What were you
doing all this time? Wearing a girdle to hide your stomach? Where did this
stomach come from?”
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137. Shortly thereafter, MS. RODRIGUEZ asked the billing
supervisor, Talitha Crespo, about what had happened to the other pregnant
employee who Ms. Crespo had referred to.
138. Ms. Crespo told MS. RODRIGUEZ (in the presence of
Monica Eadie, an employee of another physician on the same floor) that
both MS. DAVIS and MS. SANTANA had been terminated because they
were pregnant.
139. At G.E.B.’s Christmas party, MR. AYENDE and DR.
PASWALL each assured MS. RODRIGUEZ she would still have a job
waiting for her if she decided to come back to work after having the baby.
140. MS. RODRIGUEZ then told DR. PASWALL, and
repeated to MR. AYENDE, that she would work up to the time of giving
birth, and would return to work six weeks after giving birth.
141. MR. AYENDE told MS. RODRIGUEZ that she was not
allowed to do heavy filing or lift heavy water bottles.
142. Within two weeks of learning that MS. RODRIGUEZ
was pregnant, DR. PASWALL began giving her much more work and
permitting other doctors in the medical suite (some of whom were not
G.E.B. employees) to assign her extra work.
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143. While MS. RODRIGUEZ had received extra pay in
December for having regularly worked beyond her normal working hours at
Defendant’s request, Defendants told her in January 2007 that they would
stop paying her for the extra hours, but that she was still expected to
complete the same amount of work, and that she had to do so by 6:00 p.m.
144. Like MS. SANTANA before her, MS. RODRIGUEZ
was required to do extra work because Natalie (the non-pregnant employee
with the same duties) was given favorable treatment, and was often missing
or absent from work.
145. DR. PASWALL also made it harder for MS.
RODRIGUEZ to interact with him on work assignments by frequently
ignoring her and giving her the “cold shoulder.”
146. Defendants also began making unwarranted complaints
about MS. RODRIGUEZ’S performance, and otherwise mistreating her in a
transparent effort to make her quit.
147. MR. AYENDE, who had been friendly with MS.
RODRIGUEZ before learning that she was pregnant, became hostile and
overbearing toward MS. RODRIGUEZ.
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148. MR. AYENDE and Jennifer Norton also began directly
and indirectly accusing MS. RODRIGUEZ of lying about how far along she
was in her pregnancy.
149. DR. PASWELL was present when a number of these
accusations against MS. RODRIGUEZ were made, but did nothing to stop
them.
150. In the presence of DR. PASWALL, MR. AYENDE also
told MS. RODRIGUEZ, “You’re too big! You must be having twins. Right
Dr. Paswall?,” and DR. PASWALL said he agreed.
151. MR. AYENDE was so obsessed with the idea that MS.
RODRIGUEZ was lying about how many months pregnant she was, that he
ordered her to go to an imaging center and bring him proof of how many
months she was pregnant.
152. MS. RODRIGUEZ, responded that she would make an
appointment with her doctor.
153. MR. AYENDE replied, “No! Dr. Sawlani [a G.E.B.
employee] is going to refer you to an imaging center and we are going to
see if you’re actually 5 or 5½ months pregnant. There is no way! You’re
actually further along and you are too big!”
28
154. That night MR. AYENDE told MS. RODRIGUEZ to call
Dr. Sawlani so that he could tell her which imaging center she should report
to, and Dr. Sawlani told her that he would speak to her the next day.
155. The next day Dr. Sawlani referred MS. RODRIGUEZ to
Doshi Diagnostics, and she made the appointment.
156. Shortly thereafter, MR. AYENDE informed MS.
RODRIGUEZ that the results of the diagnostic test were back, and that they
confirmed the correctness of what she had told them about the status of her
pregnancy.
157. Upon information and belief, Defendants’ mistreatment
of MS. RODRIGUEZ sent a signal to Jennifer Norton and other G.E.B.
employees that MS. RODRIGUEZ was no longer a valued member of the
G.E.B. workforce.
158. When MS. RODRIGUEZ complained to MR. AYENDE
about how rudely Jennifer Norton (who was not pregnant or known to be
pregnant) was treating her, MR. AYENDE responded, “That’s just how
Jennifer is. Don’t take it personal.” When MS. RODRIGUEZ asked MR.
AYENDE whether it would be acceptable for her to speak rudely to Jennifer
Norton, MR. AYENDE responded, “No, because if you do it you’re just
trying to be a bitch towards her.”
29
159. MR. AYENDE also began to openly ridicule MS.
RODRIGUEZ’S for being pregnant.
160. In or about February 2007, MS. RODRIGUEZ overheard
MR. AYENDE telling co-workers, “Don’t tell Melissa we’re ordering
food.”
161. In or about February 2007, MR. AYENDE told MS.
RODRIGUEZ that she was “too big to fit into the room” and “soon you
won’t be able to fit in the front office and the filing room.”
162. On or about March 5, 2007, MR. AYENDE called MS.
RODRIGUEZ into DR. PASWALL’S office.
163. MS. RODRIGUEZ entered DR. PASWALL’S office,
where DR. PASWALL and MR. AYENDE were waiting, and was fired.
164. DR. PASWALL told MS. RODRIGUEZ, in words or
substance, “You’re a great employee. You’re hard working. But the reason
we have such a high turnover here is that we expect more. Right now you
can’t produce more. You should think about working for an office with one
or two doctors.”
165. MS. RODRIGUEZ asked what they meant by all that,
and she told them they were firing her for being pregnant.
30
166. MR. AYENDE and DR. PASWALL denied that her
pregnancy was the reason she was being fired.
167. MS. RODRIGUEZ was replaced by an employee who,
on information and belief, was not pregnant or who was not known to be
pregnant.
The Administrative Proceedings
168. In May 2007, MS. DAVIS filed a charge alleging
unlawful discrimination on the basis of sex and pregnancy with the New
York State Division of Human Rights (“SDHR”).
169. In June 2007, MS. RODRIGUEZ filed a charge alleging
unlawful discrimination on the basis of sex and pregnancy with the SDHR.
170. In June 2007, MS. SANTANA filed a charge alleging
unlawful discrimination on the basis of sex, pregnancy and race with the
SDHR.
171. On June 27, 2007, MS. DAVIS and MS. RODRIGUEZ
attended a fact-finding conference at SDHR, which Defendants attended and
participated in as well.
31
172. On August 14, 2007, SDHR issued “Probable Cause”
determinations with respect to the administrative complaints filed by MS.
DAVIS, MS. SANTANA and MS. RODRIGUEZ.
173. Thereafter, at Plaintiffs’ request, Plaintiffs’
administrative remedies were annulled so Plaintiffs could commence a civil
action in court.
Defendants’ Attempt to Intimidate and Manipulate a Key Witness
174. Upon information and belief, SDHR contacted
Defendants’ billing supervisor, Talitha Crespo, to ask her if she told MS.
RODRIGUEZ that MS. DAVIS and MS. SANTANA were fired because
they were pregnant.
175. Upon information and belief, Ms. Crespo denied having
told MS. RODRIGUEZ that MS. DAVIS and MS. SANTANA were fired
for being pregnant.
176. Upon information and belief, SDHR then contacted
Monica Eadie, a disinterested witness who was present when Talitha Crespo
told MS. RODRIGUEZ that MS. DAVIS and MS. SANTANA were fired
for being pregnant.
32
177. Ms. Eadie admitted to SDHR that she was present when
Ms. Crespo made the statement in question to MS. RODRIGUEZ.
178. Upon information and belief, DR. PASWALL and MR.
AYENDE later learned that Ms. Eadie admitted to SDHR that she was
present when Ms. Crespo said that MS. DAVIS and MS. SANTANA were
fired for being pregnant.
179. Upon information and belief, Defendants then took
immediate steps to intimidate Ms. Eadie for having been truthful when
contacted by SDHR.
180. Upon information and belief, knowing that Monica Eadie
was economically dependent on her employer (Dr. Steven Diamond), DR.
PASWALL and/or MR. AYENDE falsely told Dr. Diamond that MS.
RODRIGUEZ was pressured by Monica Eadie to file a pregnancy
discrimination complaint with SDHR, and that MS. RODRIGUEZ allegedly
“confessed” that her pregnancy discrimination claim was false.
181. Defendants’ statement to Dr. Diamond was outrageous,
manipulative and unequivocally false, and tantamount to an admission of
guilt on Defendants’ part.
182. Upon information and belief, upon hearing these false
allegations Dr. Diamond became angry with Ms. Eadie.
33
183. Upon information and belief, MR. AYENDE told Ms.
Eadie and Dr. Diamond that Ms. Eadie was not allowed to speak with
anyone employed by G.E.B.
184. Upon information and belief, Ms. Eadie then contacted
MS. RODRIGUEZ to ask whether it was true that she had been lying and
had “confessed” that her discrimination complaint was false.
185. MS. RODRIGUEZ then informed Ms. Eadie that what
G.E.B. said was unequivocally false.
186. MS. RODRIGUEZ then contacted SDHR regarding
Defendants’ witness intimidation and manipulation.
187. Upon information and belief, SDHR then contacted MR.
AYENDE and/or DR. PASWALL and warned him or them to cease
engaging in such behavior.
34
FIRST CAUSE OF ACTION
SEX AND PREGNANCY DISCRIMINATION IN VIOLATION OF THE
NEW YORK CITY HUMAN RIGHTS LAW
188. Plaintiffs repeat and reallege the allegations of
paragraphs 1-187 herein.
189. On information and belief, G.E.B. has, and has had at all
material times herein, at least four persons in its employ.
190. On information and belief, G.E.B. is and was at all
material times herein: (A) a “person” under NYCHRL § 8-102(5); (B) an
“employer” under NYCHRL § 8-102(1); (C) a “place or provider of public
accommodation” under NYCHRL § 8-102(9); (D) a “covered entity” under
NYCHRL § 8-102(17); (E) an “agent” under NYCHRL § 8-107(1); and (F)
an “aid[or]” and “abet[tor]” under NYCHRL § 8-107(6).
191. At all material times herein, DR. PASWALL was an
employer of Plaintiffs, and had at least four persons working in his employ.
192. On information and belief, DR. PASWALL is and was at
all material times herein: (A) a “person” under NYCHRL § 8-102(5); (B) an
“employer” under NYCHRL § 8-102(1); (C) a “provider of public
accommodation” under NYCHRL § 8-102(9); (D) a “covered entity” under
NYCHRL § 8-102(17); (E) an “employee” or “agent” of Plaintiffs’
35
employer under NYCHRL § 8-107(1); and (F) an “aid[or]” and “abet[tor]”
under NYCHRL § 8-107(6).
193. On information and belief, MR. AYENDE is and was at
all material times herein: (A) a “person” under NYCHRL § 8-102(5); (B) a
“covered entity” under NYCHRL § 8-102(17); (C) an “employee” or
“agent” of Plaintiffs’ employer under NYCHRL § 8-107(1); and (D) an
“aid[or]” and “abet[tor]” under NYCHRL § 8-107(6).
194. NYCHRL § 8-107, et seq. makes it unlawful for any
employer or an employee or agent thereof, because of sex or a sex-specific
condition (such as pregnancy), to discharge an individual or otherwise
discriminate against an employee in the terms, conditions or privileges of
employment.
195. Discrimination based on gender includes discrimination
based on stereotypes about the ability of pregnant women and women with
actual or prospective caregiving responsibilities to serve as dedicated and
competent members of the workforce.
196. Plaintiffs were subjected to disparate treatment in their
employment and later terminated because Defendants embraced outdated
and inaccurate stereotypes about the ability of pregnant women to serve as
competent and dedicated members of the workforce.
36
197. As a result of their prejudices, Defendants viewed
Plaintiffs not for who they are, or how well they performed, but through a
discriminatory “lens” that magnified their real or perceived shortcomings
and minimized their contributions.
198. There are no comparable stereotypes about the ability of
non-pregnant female employees or male employees who are expecting
fathers to participate in the workforce.
199. Defendants, in treating Plaintiffs differently than their co-
workers, have engaged in sex and/or sex-plus pregnancy discrimination.
200. Defendants knew, and should have known, that Plaintiffs
were subjected to unfair and discriminatory treatment, but did nothing to
remedy the problem, and, in fact, carried out, condoned and ratified the
discriminatory acts against Plaintiffs as set forth herein.
201. DR. PASWALL and MR. AYENDE directly endorsed
and participated in the disparate treatment of Plaintiffs.
202. There was no practical pre-termination avenue of
complaint for Plaintiffs.
203. MS. SANTANA’S resulting injuries include, but are not
limited to, loss of employment, economic dislocation, physical and mental
37
anguish, stress, sleeplessness, loss of appetite, loss of self esteem,
depression, inability to concentrate, and shame and humiliation.
204. MS. DAVIS’S resulting injuries include, but are not
limited to, loss of employment, economic dislocation, physical and mental
anguish, stress, fear of becoming pregnant again, depression, irritability,
inability to concentrate, and shame and humiliation.
205. MS. RODRIGUEZ’S resulting injuries include, but are
not limited to, emotional and physical anguish and distress, loss of
employment, economic dislocation, shame, stress, fear of becoming
pregnant again, depression, irritability, inability to concentrate, and
humiliation.
206. As a result of the foregoing, Plaintiffs have been
damaged in an amount to be determined at trial, but which is believed to be
not less than $1,000,000 each, and for which Defendants are liable.
207. In addition, Defendants’ conduct was so willful, wanton
and inimical to the public interest that punitive damages should be imposed
in an amount sufficient to deter such serial misconduct in the future, and to
deter other employers from willfully engaging in sex discrimination and
firing employees for becoming pregnant.
38
SECOND CAUSE OF ACTION
SEX AND PREGNANCY DISCRIMINATION IN VIOLATION OF THE
NEW YORK STATE HUMAN RIGHTS LAW (Pleaded in the Alternative)
208. Plaintiffs repeat and reallege the allegations of
paragraphs 1-207 herein.
209. In the event this claim is inconsistent with Plaintiffs’ first
cause of action, it is pleaded in the alternative, but only in the event of and to
the extent of such inconsistency.
210. On information and belief, G.E.B. is and was at all
material times herein: (A) a “person” under NYSHRL § 292(1); (B) an
“employer” under NYSHRL § 292(5); and (C) a “place or provider of public
accommodation” under NYSHRL § 292(9).
211. On information and belief, DR. PASWALL is and was at
all material times herein a “person” under NYSHRL § 292(1), and an
“employer” under NYSHRL § 292(5).
212. On information and belief, MR. AYENDE is and was at
all material times herein a “person” under NYSHRL § 292(1).
213. NYSHRL § 296(1)(a) makes it unlawful for any
employer or an employee or agent thereof, because of sex or a sex-specific
39
condition (such as pregnancy), to discharge or otherwise discriminate
against an employee in the terms, conditions or privileges of employment.
214. As a result of Defendants’ unlawful discriminatory
conduct as aforesaid, Plaintiffs have been damaged in an amount to be
determined at trial, but which is believed to be not less than $1,000,000
each, and for which Defendants are liable.
THIRD CAUSE OF ACTION
SEX, PREGNANCY AND RACE/ETHNICITY DISCRIMINATION IN VIOLATION OF THE NEW YORK CITY HUMAN RIGHTS LAW
215. Plaintiffs repeat and reallege the allegations of
paragraphs 1-214 herein.
216. MS. SANTANA is a dark-skinned woman of Dominican
descent.
217. MS. DAVIS is a dark-skinned woman of African
descent.
218. MS. RODRIGUEZ is a dark-skinned Hispanic woman of
Dominican and Puerto Rican descent.
219. DR. PASWALL is Caucasian male.
40
220. MR. AYENDE is a light-skinned male of Puerto Rican
descent who is closely allied with DR. PASWALL.
221. Defendants’ pregnancy-based stereotypes often
converged with, or were otherwise made worse by, their negative
stereotypes about persons (and women in particular) who are African-
Americans or dark-skinned Hispanics.
222. Defendants’ negative stereotypes about such minorities
(and such minority women in particular) were evidenced by, among other
things, the following actions and/or comments directed at MS. SANTANA.
223. Throughout MS. SANTANA’S employment, MR.
AYENDE made a number of disparaging and stereotypical comments about
Dominicans to MS. SANTANA.
224. DR. PASWALL appeared to echo these sentiments in
June 2006 when he saw MS. SANTANA speaking to two co-workers when
she was on her way back to the office from lunch, at which time DR.
PASWALL smiled and told MS. SANTANA, “You Dominicans are all the
same. You talk too much. You don’t shut up. Get back to work.”
225. In addition, while DR. PASWALL was standing a few
feet behind MS. SANTANA, and MR. AYENDE was standing a few feet in
front of her, a G.E.B. employee (Jennifer Norton) who wrongly perceived
41
herself as having been slighted, exploded in a rage and screamed “GHETTO
BITCH!” at MS. SANTANA.
226. DR. PASWALL and MR. AYENDE stood by idly and
failed to discipline or even admonish Ms. Norton.
227. In a conversation between MR. AYENDE and a worker
from another office on that floor about why a pregnant GEB employee (MS.
SANTANA) was just fired, MR. AYENDE said the woman who was fired
(MS. SANTANA) was “ghetto.”
228. Defendants’ negative stereotypes about such racial and
ethnic minorities (and such minority women in particular) were also
evidenced by, among other things, the following actions and/or comments
directed at MS. DAVIS.
229. DR. PASWALL told MS. DAVIS during her interview,
“you don’t look like you could survive on unemployment,” an otherwise
inexplicable comment which seems to imply that African-Americans are (A)
prone to going on unemployment, and (B) poor in general, and, in MS.
DAVIS’S case, too poor to afford adequate child care while remaining a
productive member of in the workforce.
230. In addition, during the workday DR. PASWALL once
made a point of telling MS. DAVIS that he has black friends, and that he
42
was in McDonald’s with one of black friends when a black man approached
his friend to give him some music CDs but did not give any to DR.
PASWALL.
231. An awkward silence followed this comment, as MS.
DAVIS could not understand why DR. PASWALL was complaining about
this to her.
232. DR. PASWALL’S lament about this incident came “out
of the blue,” and almost certainly would not have been made to her if she
were white.
233. Like the “survive on unemployment” comment DR.
PASWALL made to MS. DAVIS during her interview, DR. PASWALL’S
misplaced lament to MS. DAVIS about the disrespect he was shown by a
black person strongly suggests that DR. PASWALL viewed MS. DAVIS
less favorably on account of her skin color than he would have if she were
white.
234. Defendants’ negative stereotypes about persons (and
women in particular) who are African-Americans or dark-skinned Hispanics
were also evidenced by, among other things, the following actions and/or
comments directed at MS. RODRIGUEZ.
43
235. MR. AYENDE once asked MS. RODRIGUEZ “What is
the one thing you have in your purse that you never leave the house
without?” MS. RODRIGUEZ replied, “I don’t know, a mirror?,” to which
MR. AYENDE responded “No, a knife. Don’t you have a knife in your
purse? I thought all Spanish women carried knives.”
236. MS. RODRIGUEZ, who was raised in a Spanish-
speaking household and was taking ESL classes, was also needlessly
ridiculed directly by MR. AYENDE (and, upon information and belief,
behind her back by DR. PASWALL) for the occasional verbal mistakes or
mispronunciations that occurred because English was not her first language.
237. In addition, MR. AYENDE’S discriminatory statement
“Is the father around?” (which was itself prompted by a discriminatory
remark from DR. PASWALL after seeing a photo of MS. RODRIGUEZ’S
daughter on her desk), reflects the stereotype that Hispanic women with
children are likely to be single mothers, and the related stereotype that single
mothers are not dependable employees.
238. That discriminatory mentality was reiterated by MR.
AYENDE when he asked MS. RORIGUEZ if her husband was the one who
had impregnated her.
44
239. The convergence of Defendants’ race-, sex- and
pregnancy-based stereotypes operated to deprive Plaintiffs of the
opportunity to be judged based on individual merit, free from unlawful
discrimination, and, as a result, Plaintiffs were unlawfully discriminated
against and terminated at a time when they were especially vulnerable.
240. As a result of the foregoing, Plaintiffs have been
damaged in an amount to be determined at trial, but which is believed to be
not less than $1,000,000 each, and for which Defendants are liable.
241. In addition, Defendants’ conduct was so willful, wanton
and inimical to the public interest that punitive damages should be imposed
in an amount sufficient to deter such serial misconduct in the future, and to
deter other employers from willfully engaging in such unlawful
discrimination.
45
FOURTH CAUSE OF ACTION
ACTUAL OR PERCEIVED DISABILITY DISCRIMINATION IN VIOLATION OF THE
NEW YORK CITY HUMAN RIGHTS LAW
242. Plaintiffs repeat and reallege the allegations of
paragraphs 1-241 herein.
243. In the event this claim is inconsistent with any prior
claim herein, it is pleaded in the alternative, but only in the event of and to
the extent of such inconsistency.
244. Pregnancy is considered a disability under the NYCHRL.
245. NYCHRL § 8-107(1)(a) makes it unlawful for “an
employer or an employee or agent thereof, because of the actual or
perceived…disability…of any person, …to discharge from employment
such person or to discriminate against such person in compensation or in
terms, conditions or privileges of employment.”
246. Upon information and belief, Defendants erroneously
perceived Plaintiffs as being disabled as a result of their pregnancies (and, in
the case of MS. SANTANA, as a result of her pregnancy and/or anemia and
anemia-related conditions of which Defendants became fully aware).
46
247. As a result such discrimination (and, if applicable, the
other forms of unlawful discrimination alleged herein), Defendants
unlawfully discriminated against Plaintiffs in the workplace and fired them.
248. In the alternative, in the event Plaintiffs actually were
“disabled” on account of their pregnancies (and, in the case of MS.
SANTANA, as a result of her pregnancy and/or anemia), Defendants failed
to provide them with reasonable accommodations (as they would have done
for employees with comparable or more severe disabilities), and chose
instead to unlawfully discriminate against them and fire them.
249. Defendants also engaged in prohibited disability
discrimination by requiring MS. RODRIGUEZ to submit to a medical
examination to determine how far along she was in her pregnancy.
250. As a result of the foregoing, Plaintiffs have been
damaged in an amount to be determined at trial, but which is believed to be
not less than $1,000,000 each, and for which Defendants are liable.
251. In addition, Defendants’ conduct was so willful, wanton
and inimical to the public interest that punitive damages should be imposed
in an amount sufficient to deter such serial misconduct in the future, and to
deter other employers from willfully engaging in disability discrimination
and other forms of prohibited discrimination.